FMLA leave is available to an employee for 12 weeks (60 work days for an employee who works 5 day work weeks) within a 1 year period of the first day of leave for the reasons listed below under “Leave Entitlement.” The purpose of FMLA Leave is to protect an employee’s position & benefits. FMLA does not provide pay. It can run concurrent with the first 12 weeks of the paid short term disability leave. FMLA leave can stop & restart if an employee comes back to work and leaves again with the 1 year period.
After 12 weeks of FMLA leave, a continued Leave of Absence (LOA) would be possible. Care of a military service family member is eligible for 26 weeks FMLA Leave. Intermittent FMLA leave is only permitted for special circumstances such as intermittent chemotherapy. Holidays, Holy Days and breaks are not counted in the FMLA leave days.
The part time employee, who works less than 30 hours a week, without Sun Life disability insurance coverage: Accrued sick & vacation days must be taken during this time. Check to see if they work enough hours to be FMLA eligible (unpaid leave); 1250 hours in the past 12 months. FMLA would protect their position while they are on leave.
- As the employer, you need to determine if the employee is eligible for FMLA leave, (see “Employee Eligibility” below), and provide the forms to the employee that need to be completed by the employee and by the employee’s doctor. (scroll to the bottom for these forms). Note: do not count holidays or any other breaks, including snow days or holy days as part of the FMLA Leave.
- After the employee paperwork is completed and returned to you, you need to complete the “Designation Notice under FMLA” (found below with forms). Copies of all FMLA paperwork needs to be kept at your location and filed in a separate file and separate area from the employee’s personnel file. This is required by Federal law.
EMPLOYER COVERAGE
The Family and Medical Leave Act of 1993 (FMLA) entitles eligible employees to take up to 12 work weeks of unpaid, job-protected leave within a 12-month period for specified family and medical reasons, or for any “qualifying exigency” arising out of the fact that a covered military member is on active duty, or has been notified of an impending call or order to active duty, in support of a contingency operation. The FMLA also allows eligible employees to take up to 26 work weeks of job-protected leave in a “single 12-month period” to care for a covered military service member with a serious injury or illness.
The FMLA applies to all public agencies, including state, local and federal employers, local education agencies (schools), and private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors of covered employers. While your individual parish, school or institution may not have 50 or more employees, for the purposes of FMLA, the Archdiocese is considered one employer making employees at each individual location eligible for FMLA.
EMPLOYEE ELIGIBILITY
To be eligible for FMLA benefits, an employee must:
- work for a covered employer (the Archdiocese);
- have worked for the employer for a total of 12 months;
- have worked at least 1,250 hours over the previous 12 months; and
- work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles (Again, all Archdiocesan employers fall under this category).
While the 12 months of employment need not be consecutive, employment periods prior to a break in service of seven years or more need not be counted unless the break is for the employee’s fulfillment of his or her National Guard or Reserve military obligation or a written agreement, including a collective bargaining agreement, exists concerning the employer’s intention to rehire the employee after the break in service. For example, if an employee has worked at your location for 8 months and worked for another Archdiocesan institution for an additional 4 months more than 7 years ago, the employee would not qualify for FMLA. However, if the employee has worked at your location for 8 months and worked at another Archdiocesan institution for 4 months 5 years ago, that employee would qualify for FMLA.
LEAVE ENTITLEMENT
A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:
- for the birth and care of a newborn child of the employee (men and women are both entitled to this);
- for placement with the employee of a son or daughter for adoption or foster care;
- to care for a spouse, son, daughter, or parent with a serious health condition;
- to take medical leave when the employee is unable to work because of a serious health condition; or
- for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard or Reserves in support of a contingency operation.
A covered employer also must grant an eligible employee who is a spouse, son, daughter, parent, or next of kin of a current member of the Armed Forces, including a member of the National Guard or Reserves, with a serious injury or illness up to a total of 26 work weeks of unpaid leave during a “single 12-month period” to care for the service member.
Spouses employed by the same employer are limited in the amount of family leave they may take for the birth and care of a newborn child, placement of a child for adoption or foster care, or to care for a parent who has a serious health condition to a combined total of 12 work weeks (or 26 workweeks if leave to care for a covered service member with a serious injury or illness is also used). For this specific provision, “same employer” should be considered to be the individual institution in which the employees work, not the Archdiocese as a whole. Leave for birth and care, or placement for adoption or foster care, must conclude within 12 months of the birth or placement.
Under some circumstances, employees may take FMLA leave intermittently – taking leave in separate blocks of time for a single qualifying reason – or on a reduced leave schedule – reducing the employee’s usual weekly or daily work schedule. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operation. If FMLA leave is for birth and care, or placement for adoption or foster care, use of intermittent leave is subject to the employer’s approval.
Under certain conditions, employees or employers may choose to “substitute” (run concurrently) accrued paid leave (such as sick or vacation leave) to cover some or all of the FMLA leave. An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy.
MAINTENANCE OF HEALTH BENEFITS
A covered employer is required to maintain group health insurance coverage for an employee on FMLA leave whenever such insurance was provided before the leave was taken and on the same terms as if the employee had continued to work. Arrangements will need to be made for employees to pay their share of health insurance premiums while on leave. In some instances, the employer may recover premiums it paid to maintain health coverage for an employee who fails to return to work from FMLA leave.
JOB RESTORATION
Upon return from FMLA leave, an employee must be restored to the employee’s original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. An employee’s use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave. If a bonus or other payment, however, is based on the achievement of a specified goal such as hours worked or perfect attendance, and the employee has not met the goal due to FMLA leave, payment may be denied unless it is paid to an employee on equivalent leave status for a reason that does not qualify as FMLA leave.
An employee has no greater right to restoration or to other benefits and conditions of employment than if the employee had been continuously employed.
EMPLOYEE NOTICE
Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. If leave is foreseeable less than 30 days in advance, the employee must provide notice as soon as practicable – generally, either the same or next business day. When the need for leave is not foreseeable, the employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. Absent unusual circumstances, employees must comply with the employer’s usual and customary notice and procedural requirements for requesting leave.
Employees must provide sufficient information for an employer reasonably to determine whether the FMLA may apply to the leave request. Depending on the situation, such information may include that the employee is incapacitated due to pregnancy, has been hospitalized overnight, is unable to perform the functions of the job, and/or that the employee or employee’s qualifying family member is under the continuing care of a health care provider.
When an employee seeks leave for a FMLA-qualifying reason for the first time, the employee need not expressly assert FMLA rights or even mention the FMLA. When an employee seeks leave, however, due to a FMLA-qualifying reason for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave.
EMPLOYER NOTICE
Covered employers must post a notice approved by the Secretary of Labor explaining rights and responsibilities under the FMLA. An employer that willfully violates this posting requirement may be subject to a civil money penalty of up to $110 for each separate offense. Additionally, employers must either include this general notice in employee handbooks or other written guidance to employees concerning benefits, or must distribute a copy of the notice to each new employee upon hiring. Below is a copy of the Department of Labor FMLA poster (one in English and one in Spanish) that should be hung in a common area that employees frequent.
When an employee requests FMLA leave or the employer acquires knowledge that leave may be for a FMLA purpose, the employer must notify the employee of his or her eligibility to take leave, and inform the employee of his/her rights and responsibilities under the FMLA. When the employer has enough information to determine that leave is being taken for a FMLA-qualifying reason, the employer must notify the employee that the leave is designated and will be counted as FMLA leave.
CERTIFICATION
Employers may require that an employee’s request for leave due to a serious health condition affecting the employee or a covered family member be supported by a certification from a health care provider. An employer may require second or third medical opinions (at the employer’s expense) and periodic recertification of a serious health condition. An employer may use a health care provider, a human resource professional, a leave administrator, or a management official – but not the employee’s direct supervisor – to authenticate or clarify a medical certification of a serious health condition. An employer may have a uniformly-applied policy requiring employees returning from leave for their own serious health condition to submit a certification that they are able to resume work. If reasonable safety concerns exist, an employer may, under certain circumstances, require such a certification for employees returning from intermittent FMLA leave.
UNLAWFUL ACTS
It is unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by the FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to the FMLA.
RECORD KEEPING
A copy of the completed FMLA forms, Certification of Health Care Provider and any supporting documents should be kept on file at your entity. However, under no circumstances should you keep this information in the employee’s regular personnel file. Doing so could result in penalties brought by the Department of Labor and charges of discrimination by the employee.
FMLA FORMS
Important – Be sure to get FMLA forms completed as soon as is reasonable.
Incomplete or incorrect information & dates can affect eligibility of employee leave & benefits.
FMLA forms are not sent to Sun Life. FMLA forms should be filed at your entity, separate from the normal employee file, along with any other medical or private information.
Employee & PHYSICAN FMLA Forms:
2. Notice Of Eligibility Under FMLA Leave – Required to be given to the employee within 5 days of Employee request for FMLA leave
3. Health Care Provider Certification of Employee’s Health Condition – to be completed by the physician OR Health Care Provider Certification of a Family Member’s Health Condition – to be completed by the physician
4. Designation Notice under FMLA – to be given to the employee within 5 days of receiving Physicians Certification
Employer’s FMLA Forms:
Federal FMLA Fact Sheet for Employers regarding Employer notification requirements
OTHER FMLA RESOURCES:
FMLA POSTER (English)
FMLA POSTER (Spanish)